I joined Bill Kunstler and a much-older and ready-to-retire local civil rights lawyer, Conrad Lynn, to defend the first-named defendant, Wallace Baker, which would require me to go first in all the arguments, presentations of evidence, and summations. Why did I join the defense when there was so much evidence against the defendants and did I think they were guilty became recurring questions. I have always answered that the boys denied their guilt, and there were serious concerns about how the cops went about developing their evidence. None of the four was accused of the actual killing of Mrs. Sugar or the knifing of her husband, and forcing them to take a plea to a life sentence made no sense after they had served seven years in prison. Also, and central to my thinking, I was convinced that it was only because the four were black that the prosecution demanded a plea to felony murder, which required a life sentence for all who participated during the commission of a felony.
It was my second long murder trial. Bill and I endlessly attacked the prosecution case and hit pay dirt enough times to seriously weaken it. At the end of the trial I gave a summation that lasted all day, harping on flaws of the prosecution’s evidence. Bill followed the next day, his blue eyes flashing and his deep baritone voice hitting all the right notes. By the time the assistant district attorney got his turn, we sensed that a conviction was far from a sure thing. After he summed up and the judge charged the jury, the jurors deliberated for three days, then declared that they were hung.
Two weeks after the judge had dismissed the jury, which told the press that its last vote had been seven to five for acquittal, and with Bill already traveling to his next case, I negotiated, with the approval of the young men and their mothers, a manslaughter plea with a sentence of time served. The four were released immediately. Afterward they held a press conference on the courthouse steps declaring their innocence. One of the New York tabloids ran a front-page headline: “Harlem Four Plead Guilty and Go Free.”
Years later I checked with the charter support group and was told that only one of the four had run afoul of the law, and that was for a drug-related nonviolent crime. Credit for their crime-free lives, of course, goes to their mothers and the good people of the support group, who stood by them throughout their long years in prison and helped them reenter, and integrate themselves into, civil society. No matter how the four lived out their freedom, however, and no matter whether they were guilty or innocent, our team of civil rights lawyers had served not only them but the people of Harlem, who were fed up with mass imprisonments of their young boys. At least for a tiny moment, we had held “the Man” downtown in check.
* * *
Stop-and-frisk programs come and go, but racial profiling seems to be a permanent fixture in America. No matter the progress we’ve seen in race relations, police and residents of white neighborhoods still eye African Americans with suspicion if not open hostility. And while the old “There goes the neighborhood” refrain can nowadays refer to gentrification—the occasional incursions of middle-class whites into all-black neighborhoods, bringing with them higher property values and rents and pushing the nonwhite residents farther away from where the jobs are and redeveloped city centers—we still live in a highly segregated nation.
When I ventured up to Harlem as a college student, going there seemed like the height of cool. I used to drive up on double dates, and go to one of the jazz clubs on what is now Adam Clayton Powell Boulevard. We pretended that Harlem was no different from Fifty-Second Street, where jazz blared out of the bars, but despite the friendly atmosphere in the clubs, we were always careful. On the way back downtown, car doors locked, we would scan the streets for trouble until we hit the border where white people lived.
Years later when I was working for the NAACP, I spent time in black neighborhoods. Usually I was with an African American with roots in the community. Alone, I always made a beeline for my destination. Often I thought people were looking at me. Maybe, but I was certainly looking at them. My fear, I sensed, had to do with feeling that if I were black, I might want revenge for the indignities they suffered in white areas of the city. Sometimes I had seen these affronts—the difficulty in getting cabs, the rudeness in department stores, the bad tables in restaurants, the stares and under-the-breath slurs directed at African American men accompanying white women, and the hassles young black men endured from white cops. Almost always remaining passive when I observed these incidents, I tried not to look, embarrassed about whatever it was inside me that made me hesitate to intervene. If I were black, I was sure, watching whites look on and do nothing would infuriate me all the more.
After the NAACP, when I started working on criminal cases that were assigned to me by the courts to defend indigent defendants accused of homicide, all my clients were African Americans or Hispanics, who were accused of crimes that took place in black or Latino residential areas.
As a court-assigned lawyer I had access to private investigators, but they could not bill the city more than five hundred dollars to interview witnesses and check out my clients’ alibis and other defenses. They invariably did a superficial job, filing reports that would sometimes simply repeat the prosecution’s case against a defendant, with the only addition being that they were unable to verify an alibi or interview eyewitnesses. In almost all these assigned cases, the evidence against my clients seemed strong, as they were often caught at the scene, ratted out by a codefendant, or identified by witnesses who knew the clients. But the fact remained that the investigator hadn’t really looked, which is why I would sometimes try to locate witnesses myself when the prosecution case was not airtight, walking the streets of Harlem, or riding the elevators and edging down the corridors of dimly lit public housing projects. On these missions I could barely conceal my fear. With openly expressed anger directed toward whites on the increase since my NAACP days, I could feel the hostility in people’s eyes.
As I came to see how futile it was for me to try to do my own investigations, I decided that this type of defense work was not for me. Given my lack of resources, there was no way for me to weed out the few who may have been innocent from the guilty. In reality I was playing little more than a clerical role for the court system, receiving a few dollars to make it look as if it was about innocence and justice.
Tom Wolfe, a novelist I read despite myself, as he had a satirist’s way of sticking it to white liberals, painted the picture neatly in his bestseller, The Bonfire of the Vanities. I especially fixated on the scene where the white bond trader and his woman friend strayed into a black ghetto in the Bronx. There he accidentally ran over and killed a black teenager while escaping from a blocked roadway and what he believed to be a gang getting ready to pounce upon him. I could understand only too well the white guy’s fear. Bonfire spun a tale of the city’s criminal justice system, even when dealing with a wealthy white person it had ensnared.
Fortunately, unlike Tom Wolfe’s Bonfire character, I never encountered a gang of young black men whom I thought were preparing to attack me. But I was frightened out of my skin by a single young black man.
One evening I jumped on a completely empty uptown local at a New York City subway station. A young white woman came on the train and sat down. Before the doors shut, a black youth entered from the door connecting us to the next car. I looked him over carefully. He appeared vaguely on edge. I sensed that he was high. He walked the length of the car, passed me, and headed toward the front car. He hesitated and looked around. I followed him with my eyes, hoping he would soon disappear. Suddenly he turned toward me and snarled, “Why the fuck are you looking at me?” I answered as mildly as I could that I was not looking at him, my eyes dropping down to the New York Times Book Review I was clutching in my hands. “Don’t give me that shit,” he said. I kept my eyes down and thought about getting off before the doors closed. But the young woman was still the only other person in the car, and I could not leave her alone.
The doors closed, and the train slowly moved into the dark tunnel. The youth stood by the door
to the next car, muttering. He was no more than fifteen feet away. I pretended to read, fearful that if I looked at him, even out of the corners of my eyes, I might be “dissing” him. A sense of foreboding enveloped me.
For one fleeting moment the tables were turned. My world of authority, security, and comfort was far, far away. I had watched this black youth as if he were a dangerous bug, and now I was the bug, frozen under a microscope. The young woman got out at the next stop. We were alone.
The youth kept staring at me, waiting for me to look at him. I tried to read my article, my eyes missing sentences and jumping paragraphs. The words had no meaning. As we approached the next station, I decided to sit tight. If he hasn’t come after me so far, I am probably okay, I thought.
I was right. He had made his point. When we stopped, the youth moved on to the next car. A sigh escaped my lips. I was free.
But what about him? Had he achieved his own instant of freedom before the pain of leading the life of an alien in the only world he knew closed back in on him? Or was he beyond pain and beyond release, inhabiting a universe beyond the outer reaches of my understanding? Or did I have it all wrong? Was he just some irresponsible kid on a power trip?
As my pulse slowed, I pondered thoughts I have reflected upon many times. What if I was killed by a young black man, and the newspapers had a field day with the story? What would my family say about the killer? And what would I say if a black man killed my Kitty? Would I mumble about societal causes and racism? Or would I scream ugly, vengeful thoughts? And why did I not think about a white man being the killer?
I left the subway at Grand Central to join my wife and another couple at an upscale seafood restaurant. On the way I passed assorted panhandlers, each ready with a line. The subway incident flew out of my head as if I had amnesia. Over dinner the conversation was warm. A waiter hovered in the background. Order had been restored.
* * *
Prior to Martin Luther King, Jr.’s, death, the failure to address the staggering problems of the nation’s ghettos had led to mounting disaffection. After his death some African Americans, and especially the young civil rights leadership, openly turned away from King’s philosophy of nonviolence.
Many of the new voices, such as H. Rap Brown and Stokely Carmichael, were themselves branded as outlaws by law enforcement authorities, alienating greater and greater numbers of black youth. The escalating efforts of the police and FBI to destroy the Black Panthers, coupled with years of race-baiting by national politicians like George Wallace, the election of Richard Nixon, the end of the War on Poverty, the large numbers of African American Vietnam War casualties, and returning veterans who had been exposed to drug-infested Saigon and the butchery of the jungles, facing a lack of decent jobs at home or any sign that the American people appreciated their service—all of it took a toll. White soldiers returning home confronted many of the same problems as well, but their communities were often better equipped to deal with them.
* * *
To me the racial boundary lines that divide America are a curse and a major cause of black poverty, education, and unemployment. Ghetto schools are by and large inferior. People are packed into overcrowded housing. Nearby jobs are often unavailable as manufacturing has generally fled core cities. Drug use is a persistent problem, black youth are targeted by the police, and black men fill the prisons. No more need be said. The facts are known. Because of those boundary lines, the few mixed neighborhoods that sometimes exist often become black as they are the only places most African Americans can afford outside the ghettos. If blacks have the financial ability to look for housing in white areas, they have to await anxiously the reception they will receive. Even now their children live in fear of the local police and vigilantes, as the killing of Trayvon Martin illustrates.
The struggle to open up white Northern neighborhoods has gone on since the Great Migration of blacks moving North began. Bowing to the pressure exerted by civil rights organizations, and hoping to head off further nationwide racial disturbances triggered by Martin Luther King, Jr.’s, death, Congress in 1968 enacted the theoretically far-reaching Fair Housing Act. It outlawed almost all racial discrimination in housing and gave the federal courts jurisdiction to hear cases involving violations.
The first case I worked on with Dick took place in California shortly after our new firm opened, where we represented a Chicano community group, the Southern Alameda Spanish Speaking Organization (SASSO), which wanted to build a federally subsidized apartment development in Union City, an old agricultural area situated halfway between San Jose and Oakland. The area was fast becoming a bedroom suburb for the rapidly expanding industrial areas to the north and south. Chicanos, who had long farmed the land, were being pushed out of the area by whites moving into new residential developments.
In 1969, while the city council still had a Latino majority, SASSO obtained approval to rezone a tract of land for a project designed to fit in with other garden-apartment developments in the area. Whites in neighboring tracts, however, petitioned for a referendum. The vote went 1,149 to 845 against SASSO. As a result the land was returned to its old agricultural designation, and the city council was barred from rezoning the tract for a year, by which time the new white voting majority would command a council majority.
We claimed that the referendum was discriminatory. Four years later, after losing before a federal district-court judge, we persuaded the circuit court in San Francisco to rule that the referendum had an arbitrary and therefore unconstitutional impact on the Latinos who lived there. To avoid further court proceedings and blocking tactics, SASSO agreed to scale down its project, and the new complex eventually took its place alongside other higher-rent, overwhelmingly white developments.
Dick and I hoped the SASSO precedent would help other nonprofit housing organizations and private builders to overcome white resistance, but our adversaries came to realize that they could defeat fair-housing groups through foot-dragging tactics. Even more ominous, the U.S. Supreme Court, in another housing decision a few years later, wrote a footnote in its opinion, knocking out our SASSO case as precedent in similar cases. An arbitrary decision by a public body was not enough, the Supreme Court announced, to prevail. Instead a builder protesting racial exclusion would have to prove that the public body, whether the zoning authority or town council, was intentionally discriminating. That ruling was sure to scare off potential builders, as they would not want to lay out the start-up money.
* * *
Meanwhile, back in New York, my partners and I had begun a long and intense struggle to overturn Tony Maynard’s conviction. While I could have walked away after he was sentenced, as I had not agreed to represent him on appeal or to continue searching for additional witnesses to establish his innocence, I had committed myself immediately after the verdict was rendered to freeing him. The Legal Aid Society had a competent, if understaffed and underpaid, attorneys’ appeals bureau that handled posttrial proceedings for indigent defendants, but that thought never entered my mind. Instead I was determined to do whatever I could, using my own resources and those of my struggling law firm to get Maynard out of prison, no matter how long it took and no matter the cost. My partners, of course, could have said, We can’t do this. Our firm is skating on thin ice financially without this added burden. You can go it alone if you want, but we just don’t have the resources. Instead they said just the opposite. “We are with you all the way.” My partner Gretchen Oberman was one of the city’s best criminal appeals lawyers, and she would handle the appeal. As Gretchen worked to get the appeal ready, Dan and I would continue to investigate the reports that had been turned over to us during the trial.
Tony had become more than a case. He was a cause.
I had never helped anyone, black or white, who needed the kind of help Tony did. Certainly I had never intervened to protest the condescending way in which Bill was treated. Nor had I tried to see if Lorraina’s family could do anything to ensure that Duby or Sister Baby rece
ived an education. At the NAACP the school cases asked a lot of me. I had done whatever I could do to represent the mothers and fathers of the children whose desegregation cases I had fought. But I barely knew any of their names. I had developed a meaningful relationship with Bob Carter, but he had been my mentor, teacher, father figure, and a friend. By contrast Tony needed me to do what few lawyers do for their indigent clients: He needed me to make his case a paramount concern in my life, always on my mind, always looking for ways to achieve his exoneration. There would be no underpaid Legal Aid attorney doing what little could be done with scant resources and a huge workload. Now I would do for Tony what I had been unable to do for Bill and for Lorraina.
Perhaps I was being naive in believing I could succeed. I didn’t know how unbending the criminal justice system was. I did not know then that once a defendant had been convicted, especially of a violent crime, and the prisoner was packed away somewhere upstate, the chances of overturning that conviction were minimal. Appeals courts rarely upset jury verdicts, and judges as a rule turned a deaf ear to claims of new evidence. Even so, I believed we would prevail. There had been two mistrials and a long train of prosecutorial mistakes. And I had Jimmy Wechsler on my side. The New York Post packed a lot of punch, and Wechsler was publicizing the injustice that had been done to Tony. Writing column after column, he excoriated both Judge Irwin Davidson and the prosecutor, Stephen Sawyer. Gretchen Oberman also gave me hope that relief was within reach. In our talks together she pointed to Davidson’s many rulings that were contrary to the decisions of the appeals courts.
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